Children in detention: an orchestrated crisis

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While the public outcry about the separation of families and the detention of children by the Department of Homeland Security has died down since the summer, don’t mistake the relative quiet for a resolution of the crisis. In fact, the number of children in detention has increased dramatically over the past few months.

Thanks to the efforts of immigrant advocates, the federal judge who ordered an end to family separations earlier this year and is overseeing the reunification process of those caught up in the “zero-tolerance” policy, also ruled that parents who were forced to make decisions under duress about giving up their asylum claims in order to see their children again, will receive a second chance to apply for asylum. However, the government is dragging its feet, as reported by Reveal.

At the same time, the total number of migrant children detained by the federal government now surpasses 13,000, a new record, and more than five times the number in custody in May 2017, when the total was 2,400.

This massive increase is not because more children are arriving at the border, but because of a bottleneck created by the federal government. Children are being held in custody almost twice as long, from an average of 34 days to 59, and fewer potential sponsors are stepping forward to care for the children. In June, the federal government began to collect fingerprints of potential sponsors, most of whom are typically undocumented themselves, and announced that it would share this information with immigration authorities. This new policy has understandably had a chilling effect on many people’s interest to apply to be sponsors.

The increased population of young detainees has led to the federal government moving children to new facilities. Throughout the month of September, hundreds of children were removed from foster care settings across the country, often in the middle of the night when they are more docile, to tent cities in the Texas desert. These facilities are more institutional than the group home setting in which most unaccompanied migrant children are usually placed. They now have less access to legal aid, individual attention to their emotional needs, and educational services.

Claiming to try to find a solution for this problem, the Department of Homeland Security is, incredibly, considering a new family separation policy. Under a proposed 90-day pilot program, parents who are seeking asylum would be given a choice to either 1) be detained with their children through the course of their immigration proceedings or 2) send their children to a shelter where they can potentially be released to a sponsor.

This approach is similar to the draft regulation proposed by the Department of Homeland Security and the Department of Health and Human Services to replace the Flores settlement agreement, which placed limits on how long children could be held in detention, with a policy of indefinite family detention. Many advocates have expressed concern that the proposed regulations fail to treat children dignity, respect, and special concern for their particular vulnerability as minors. In addition to indefinite family detention, the proposal would also allow the Department of Homeland Security to “self-certify” that its detention facilities are safe for children (a role currently performed by state agencies), even though the department has repeatedly fallen short in providing for the basic safety and health of people it jails.

Public comments on the draft regulation can be made until November 6, and over 8,000 comments have been submitted as of October 15th. Through the regulations.gov website, you can submit a comment online to share your own views about the draft regulation. After the comment period closes, federal agencies will need to review those comments and take them into account in developing a final regulation.

It is important to note that the current situation would not be a crisis if the government reverted to past policies of using alternatives to detention for those seeking asylum, which are proven to be very effective and are far better for the emotional and mental health of migrant children.